“He beat me up, and I ended up in hospital.” Then she ended up on death row

Elizabeth Otieno Ayuma has been incarcerated at Lang’ata Women Maximum Security Prison in Nairobi, Kenya for more than seven years.

She was sentenced to death in October 2017, a charge that sat heavily on her shoulders until last year when Kenya’s President, William Ruto, used his presidential privilege to commute her sentence, and the death sentence of multiple others, to life imprisonment.

Five months after the decision, Ayuma spoke to CNN, explaining that her life had been a peaceful one until her husband became violent.

She recalled a pivotal moment in 2012, just a year after the couple had bought some land on which they built a house for their family. Ayuma was eight and a half months pregnant, and their nine-year-old child was playing in their front yard when a tree fell. Their child was thankfully left unscathed, she told CNN, but when her husband found out what had happened, she says he became violent. A woodcutter by profession, she says he had been waiting to sell the wood from the tree once it had matured.

“He beat me up, and I ended up in hospital,” Ayuma told CNN, adding that she later lost the baby.

The mother of four said her husband was remorseful after the attack, and begged for her forgiveness, leading her to oblige, wanting to move on.

But a year later, in 2013, she said it happened again.

“I was seven months (pregnant) again. There was a day that we started arguing… he ended up beating me up severely,” she said.

Ayuma reported the attack to the police the next day. CNN has seen the medical examination report related to this assault.

Her husband again apologized, Ayuma said. When she gave birth a few months later, her baby died that night.

CNN spoke to her husband who denied allegations of domestic abuse.

Ayuma shared how this intense period of despair left her emotionally drained and full of bitterness, causing her to isolate herself and shut down completely. “I tried to share what I was going through with some of my relatives, but no help was forthcoming,” she said.

By early 2016, Ayuma had decided she wanted to “teach her husband a lesson,” admitting to CNN that she hired two men to assault him in February that year.

“I plotted for him to be attacked and beaten up just for punishment, but unfortunately, my plan ended up being too extreme, as the two men went (too) far,” she explained. “He was in the hospital for a week.”

Ayuma was linked to the crime when police spoke to one of her daughters, she said, then aged 8, who was later called as the prosecution’s witness and testified in court that her mother let the assailants into the house.

While she says prosecutors initially charged her with assault and theft, granting an affordable bail that allowed her to return home with the help of a personal bond, the gravity of her husband’s injuries elevated the charge to robbery with violence – a capital crime in the Kenyan penal code, that came with bail completely out of her reach.

With no one to bear the cost on her behalf, she says she found herself awaiting trial behind bars for more than one year.

Her trial was an equally lonely experience in 2017, Ayuma said, as she couldn’t afford a lawyer and says she was not allocated a government one, leaving her to represent herself in court. Experts told CNN that overwhelmed court systems mean many defendants are left without lawyers to represent them in Kenya, and being assigned a pro-bono or government-appointed lawyer is essentially location-dependent, with it being more likely in larger cities like Nairobi.

The Kenyan judicial branch told CNN it has no mandate to give legal aid with this instead being the role of the National Legal Aid Service, but a source familiar with the process told CNN the judiciary runs the pro bono legal program. The National Legal Aid Service did not provide comment, and the judiciary did not respond to CNN’s follow-up request for comment.

Ayuma’s upbringing was one typical of many young girls in Kenya.

Coming from an impoverished background, her education was cut short in the second grade due to financial constraints. Formal employment remained an unattainable dream, leading her into marriage, often considered an escape from poverty for many uneducated women in Kenya, particularly in rural parts of the country.

An estimated 23% of women aged 20 to 24 years old in Kenya were reported to be married by the age of 18, according to the country’s 2014 demographic health survey, and early marriage is driven by poverty, lack of education and social norms that support marriage. For example, marriage may be used to alleviate parental concerns surrounding premarital sex and pregnancy, or, as one academic writes, a “survival strategy”, where families marry their daughters off in anticipation of wealth that they will receive in return for the bride.

Ayuma occasionally engaged in subsistence farming but says the meager income it generated couldn’t cover even a fraction of her legal fees.

“I was a housewife, I didn’t have a source of income, which meant that I couldn’t afford a lawyer. Also, while in court, I couldn’t understand most of what was going on,” she said.

Gikui Gichuhi, Kenya’s Assistant Director of Public Prosecutions, told CNN that a lack of education is one of the main challenges that arise during the prosecution of suspects facing capital punishment. “Even as we try to have all the proceedings translated into a language they understand, it is still difficult for them to follow and fully understand the trial process,” she said.

Further barriers for justice are societal biases and stereotypes, said Bonface Were, a lawyer and coordinator of the gender committee of the Law Society of Kenya.

“In legal proceedings, stereotypes and assumptions about gender roles can affect how individuals, especially women, are perceived,” Were explained. “For example, stereotypes that women are more emotional or less credible as witnesses can undermine their testimony,” when giving statements to a judge or magistrate.

Outside of court, women typically serve as primary caregivers in their families, and their incarceration often leaves children without their primary source of support.

Ayuma said her husband had been admittedly shocked by her sentence, expecting a shorter sentence of a few years. She hasn’t seen her husband or the three children they have together since, she said. “The only visits I get are from my 21-year-old daughter from a previous relationship, as well as my sister who lives in Nairobi.”

Life on death row was unbearable for Ayuma. She says she was in a secluded cell, with food brought to her cubicle, and wherever she went, she was under constant and maximum supervision.

“I was like an outcast because that tag is scary even to fellow prisoners,” she said. “I couldn’t go anywhere without a prison guard, and for that matter, a high ranking one.”

Today, her circumstances and living conditions have dramatically improved, she said, as she now has significantly more freedom.

The change in sentence also brought more opportunities. “Those commuted to life imprisonment can access rehabilitation programs without limitation; they are moved from the secluded death row prison cells to the general prison halls that we call the wards, where they can mingle with other prisoners,” explained Esther Lochoto, an Assistant Commissioner of Prisons and Officer in Charge of Langata Women Maximum Security Prison.

“Though still I’m not free, it is a sigh of relief,” she said. “The burden of death row hanging over my shoulders is no longer there. Being on death row feels as a curse.”

Ciiku Kiiria shared another perspective from death row.

The 35-year-old, whose name has been changed to protect her identity and ensure her safety, was sentenced to death in December 2016 for the murder of her abusive partner. A prominent scar on her face serves as a visible reminder of the violence she says she endured from her late husband.

According to court documents, Kiiria and her husband arrived home after an evening of drinking in July 2014, when a domestic argument escalated, resulting in her husband’s death and a serious facial injury for Kiiria. The records show Kiiria stated she had tried to leave her home to allow her husband to cool down, but he then attacked her from behind. Kiiria doesn’t remember what happened after that, she said, only that she found herself in the police station with a wound on her cheek bleeding, and her clothes covered in blood. In court, their house help testified that they were arguing because Kiiria had refused to serve her husband food, while the prosecution stated they had been arguing about her stepdaughter.

Kiiria’s sentence was also reduced to life imprisonment last year, following the president’s declaration, but she believes her case may have unfolded differently had she been able to afford a private lawyer.

Unlike Ayuma, Kiiria was granted a government-appointed lawyer, but says she felt they didn’t pay enough attention to her case, contributing to her harsh sentence, she told CNN.

Kiiria also had her child with her in prison.

“Being on death row was a nightmare for me, especially with my son who was just two-years old during my sentence,” she told CNN. Kenyan law allows mothers to have their children live with them in prison, up to the age of four. After this, custody typically transfers to the next of kin or, without suitable relatives, to an orphanage.

According to a source from Kenya’s office of public prosecutions, government-appointed lawyers receive limited compensation, resulting in a high caseload and potential negligence. The source requested anonymity because they are not authorized to speak to the media.

“Government-appointed defenders are usually paid Sh30,000 (equivalent to slightly above $200 US). This is very little money, as compared to private lawyers where initial fees could range from Sh100,000 (almost $700) and Sh500,000 (almost $3800) depending on the nature of the case and the status of the firm,” the source told CNN. “Also, there is no limit on how many cases an advocate can handle at any given time, meaning that they can have as many as possible.”

As an orphan with limited education from a rural county in eastern Kenya, Kiiria told CNN she too had seen marriage as her way out of poverty. But her husband struggled to find stable employment, despite having a college degree, and their financial instability led to frequent arguments — and violence. Violence “only happened during arguments,” she added.

After her sentencing, Kiiria faced a custody battle for her younger son. Once her son turned four, Kiiria’s in-laws took over custody, and she said she hasn’t heard from them since.

Her 12-year-old daughter, from a previous relationship, maintains contact through phone calls. “I made the decision to only speak to her on the phone and not have her visit, because I wouldn’t want her to see me here.”

According to Kenya’s 2022 Demographic Health Survey, an estimated 34% of women (aged 15-49) reported having experienced physical violence, with 13% reporting having experienced sexual violence.

The prevalence of violence against women is a significant factor in the crimes women on death row have been convicted for, according to Damaris Kemunto, a human rights lawyer and program officer at the International Commission of Jurists Kenya chapter (ICJ Kenya). Kemunto explained that many women on death row in Kenya are convicted of murder in the context of gender-based violence (GBV), but that the mandatory nature of death sentences often curtailed the right to a fair trial. As such, courts did not consider potentially mitigating circumstances such as gender-based violence before handing down the death sentence.

“From our tracking of court cases, women who have been accused of murder, often kill their spouses in self-defense due to the violence or physical abuse occasioned to them by their male counterparts,” said Kemunto. “In most cases…there is a history of gender-based violence to show for it.”

Research from the Cornell Centre on the Death Penalty Worldwide , highlighting that many women who end up being convicted of serious crimes like murder enter prison as long-term survivors of gender-based violence and harsh socio-economic deprivation.

These gender considerations should play a much bigger role in capital offenses, believes Were of the Law Society of Kenya. “Crimes often unfold within a context influenced by societal expectations and gender roles. By understanding these dynamics, we gain a more comprehensive understanding of the circumstances, contributing to a fairer assessment of the situation,” explained Were, adding that this also helps to identify and rectify any systemic issues that might impact the accused unfairly.

Gichuhi, the Assistant Director of Public Prosecutions, told CNN prosecutors take a history of gender-based violence into account during trial, with accused persons given a chance to state any mitigating factors, but explained that defense lawyers sometimes fail to present evidence or fail to fully explain the nature of the victimization and harm experienced by defendants. A further challenge is that women who have suffered gender-based violence tend to hide it from authorities, out of shame, he added.

One case demonstrating the importance of considering these circumstances was that of Truphena Ndonga Aswani, a community leader who pleaded guilty to killing her husband in 2020. With a lawyer to represent her, Aswani stated in her defense that she was a victim of domestic violence and that she almost died from the frequent beatings from her deceased husband, and she had evidence and witnesses supporting her being subject to domestic abuse. She further added that in killing her husband, she acted in self-defense and willingly surrendered to the police. The court, having considered the violent circumstances of the accused, charged her with manslaughter by unlawful killing and sentenced her to a one-day imprisonment non-custodial sentence.

“The judge decided the case based on the facts presented. The law allows them to invoke their discretion,” said Kemunto.

Today, presidential commutations involve a detailed petition process and in 2023, all sentences imposed as of November 21, 2022 were commuted – saving women like Ayuma and Kiiria from death row.

Since regaining some freedom within the prison, Ayuma began an educational journey, attending school in the morning and working on making mats in the afternoon to one day earn an income of her own, she said. Kiiria keeps herself occupied by preaching to fellow inmates, as well as knitting and sewing in hope of starting a business if she ever qualifies for release.

Both women told CNN that their ultimate desire now is to regain their freedom, reunite with their children, and one day rebuild their lives.